Judge unmoved by testimony of Microsoft rebuttal witness

CBS.MarketWatch.com

WASHINGTON (CBS.MW) -- District Court Judge Thomas Penfield Jackson was left bemused by Microsoft's examination of its first rebuttal witness in the landmark antitrust trial Monday, transcripts of two private bench conferences revealed.

The witness, America Online
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senior vice president David Colburn, expressed unfamiliarity with many of the documents introduced into evidence by John Warden, an attorney representing Microsoft
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Microsoft's rebuttal strategy centers on demonstrating that the software giant faces substantial competition, particularly as a result of AOL's acquisition of Netscape and strategic alliance with Sun Microsystems.

Colburn, who testified for the government in October, was subpoenaed by Microsoft to testify as a hostile witness. See related story.

In a bench conference late Monday morning, the government's lead lawyer, David Boies, told Jackson that Warden's questioning of Colburn about e-mails written by AOL Chairman Steve Case was "not a particularly healthy way to proceed" given that Colburn wasn't familiar with the documents.

Jackson concurred, telling Warden: "I am not going to foreclose you, if you want to examine him, but you have shown him one document after another that he has never seen before and he doesn't know anything about."

Jackson, who is presiding over the bench trial, held out the possibility of allowing Microsoft to substitute Case for Colburn, but Warden didn't take up the offer.

Microsoft lawyers questioned Case and Barry Schuler, the head of AOL's Interactive Services unit, in public depositions before the trial resumed June 1. Both denied that the three-way deal with Netscape and Sun poses any challenge to Microsoft's dominant Windows operating system for personal computers. See related story.

Late Monday afternoon, Jackson called lawyers from the government and Microsoft to the bench again, telling Warden: "I'm not sure where you're going here. I think you had long since exhausted this witness' personal knowledge and the examination you are conducting right now is more of a dialogue than anything else."

Jackson said he was "rather surprised" by Colburn's lack of knowledge on a number of topics.

Warden agreed, telling the judge Microsoft felt Colburn was "the best person for us to call."

"The best person to call, you don't want to call," Jackson said, referring to Case. "And I don't blame you."

At that point, Boies told Jackson: "They had the deposition of Mr. Schuler, and they had the deposition of Mr. Case, and they didn't like the testimony they got from people that had personal knowledge" of the AOL-Netscape-Sun deal.

Warden disagreed.

"We liked some of the testimony, and we didn't like some. And I'm sure the government is the same way," Warden told Jackson.

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